A.S. Kasinathan vs Madras Dock Labour Board

The petitioner herein was working as a tally clerk in the Madras Dock Labour Board from 1961. In 1971 he was made the President of the

Tamil Nadu Port Trust and Dock Labour Board Dressed Classes Workers'' League (sangam) registered under the Trade Unions Act, 1926. On

17th February, 1972, a charge memo was workers to stop work and to indulge in an illegal strike. Based on those charges, the Labour Officer

initiated a domestic enquiry and found him guilty of the said charges. The Deputy Chairman of the Dock Labour Board thereafter dismissed him

from service by order, dated 19th April, 1972. Subsequently, the petitioner filed Writ Petition No. 1347 of 1972, questioning the order of

dismissal from service. The writ petition having been dismissed, he filed Writ Appeal No. 203 of 1974. The writ appeal was also dismissed and all

the grounds of attack put forward by the petitioner against the order of dismissal were rejected.

Subsequently, the petitioner raised an industrial dispute as regards his dismissal from service, and the Ministry of Labour, Government of India,

referred the following questions to the Industrial Tribunal by an order, dated 4th March, 1980 :

Whether the action of the Deputy Chairman, Madras Dock Labour Board, in dismissing Sri A. S. Kasinathan, tally clerk No. 173 employed in

reserve pool of the Madras Dock Labour Board from service with effect from 19th April, 1972, is justified. If not, to what relief is the concerned

workman entitled ?

The Industrial Tribunal took up the reference as Industrial Dispute No. 19 of 1980. Before the Tribunal none of the parties examined any witnesses

and both parties filed documents and argued their respective cases.

Before the Industrial Tribunal, the management contended that the Dock Labour Board is not an industry under S. 2(j) of the Industrial Disputes

Act, that the dispute referred to was barred by res judicata in view of the orders passed by this Court in the writ petition as well as in the writ

appeal, and that even if the dispute is not barred by res judicata, the dismissal of the petitioner from service was justified on merits. The Tribunal

rejected the reference, upholding the said contentions of the management.

Aggrieved by the award of the second respondents rejecting the reference, the petitioner has filed the above writ petition. According to the

petitioner, the issue ""whether the action in dismissing the petitioner is justified"" really consists of two parts, namely :

(1) Whether the finding of the domestic enquiry is justified; and

(2) whether under S. 11A of the Industrial Disputes Act, the punishment of dismissal is proper and justified.

Though the Tribunal has held that the domestic enquiry is justified, it failed to consider whether the punishment was proper and justified, and thus

the Tribunal has failed to exercise its jurisdiction under S. 11A. Another ground of attack raised by the petitioner is that incitement to stop work

and incitement to indulge in an illegal strike fall under standing orders 15(b)(2) and 15(b)(27) respectively, that even if the charges are found to be

proved, it will not generally result in dismissal in the first instance as provided in the standing orders, and that the Tribunal''s finding that the

dismissal is justified in this case overlooks the said standing orders regarding punishments. It is also contended that the Tribunal, in so far as it has

not taken into account the gravity of the misconduct, and his previous record, has contravened standing order 18 which is mandatory. In any event,

the Tribunal has erred in holding that the disputed is barred by res judicata that in fact the questions raised in the dispute are entirely different from

the questions raised in the earlier writ petition.

The learned counsel for the Dock Labour Board contends that though standing orders 15(b)(2) and 15(b)(27) say that ordinarily an incitement

to work and incitement to indulge in an illegal strike are treated as minor misconduct not warranting an order of dismissal, in this case, the order of

dismissal has not been passed under the standing orders, but under the Madras Dock Workers (Regulation of Employment) Scheme, 1956, which

enables the Deputy Chairman of the Board to give a higher punishment under regulation 45(4), and, therefore, the punishment by way of dismissal

cannot be said to be contrary to the standing orders. The Board also contends that merely because for awarding a lesser punishment the previous

record has not been considered, it cannot be said that the order of punishment is illegal. On the question of res judicata, the Board''s contention is

that the order of dismissal was challenged in the writ petition as well as in the writ appeal on various grounds, and the Court has rejected all of

them, and, therefore, the decision of the High Court should be taken to constitute res judicata in the present case.

Dealing with the petitioner''s first contention that the order is contrary to the standing orders, it is seen that the standing order 15 has listed acts

and omissions, which are treated as misconduct. Clause (a) of standing order 15 sets out the acts and omissions which shall constitute major

misconduct, generally meriting dismissal, and Clause (b) of standing order 15 sets out the acts and omissions which shall constitute minor

misconduct, not generally resulting in dismissal in the first instance. Instigating another to stop work is shown as misconduct under Clause (2)(b).

Similarly participating in illegal strike or inciting workmen to go on illegal strike is listed as item (27) in Clause (b). Therefore, the acts of

misconduct committed by the petitioner will not result in dismissal in the first instance. According to the petitioner, though the standing order

contemplates a lesser punishment of the charges levelled against the petitioner, the extreme penalty by way of dismissal has been imposed on the

petitioner contrary to the standing order. However, it is seen that there is a statutory scheme framed by the Central Government under regulation 4

of the Madras Dock Workers regulates the employment of dock workers. Regulation 45 of the said scheme provides the procedure to which all

the employees in the Dock Labour Board will be subjected to. Regulation 45(i)(ii) says that where the personnel officer who has taken cognizance

of any misconduct said to have been committed by any employee considers a higher penalty than that contemplated by the standing order is

merited, he shall report the case to the Deputy Chairman, who may then cause such further investigation to be made as he may deem fit and take

certain steps as regards that employee. Clause (2) of regulation 45 says that a registered dock worker in reserve pool (to which the petitioner

belongs) who fails to comply with any of the provisions of the scheme, or commits any act of indiscipline or misconduct, may be reported in writing

to the Labour Officer who may after investigating the matter take such steps as regards the worker as are necessary. Clause (3)(a) of regulation 45

says that where a case reported by the Labour Officer under Clause (2), he is of opinion that the act of indiscipline or misconduct is so serious that

the worker should not be allowed to work any longer, the Labour Officer may, pending investigation of the matter, suspend the worker and report

immediately to the Deputy Chairman, who after preliminary investigation of the matter shall pass orders thereon as to whether the worker, pending

final order, should remain suspended or not. Clause (4) of regulation 45 provides that where in the opinion of the Labour Officer, a higher

punishment than that provided in Sub-cls. (2) and (3) is merited, he shall report the same to the Deputy Chairman, and the Deputy Chairman, on

receipt of the report may dismiss that employee under Clause (5)(e). In this case, as seen from the counter-affidavit, there has been a report by the

Labour Officer that the misconduct was quite serious, that the worker should not be allowed to work any longer, and it is on the basis of that

report, the deputy Chairman has chosen to dismiss the petitioner after giving a notice to show cause as to why the punishment of dismissal should

not be resorted to in his case. Having regard to the provisions contained in the Madras Dock Workers (Regulation of Employment) Scheme

enabling the Deputy Chairman to pass an order of dismissal if the misconduct alleged against the petitioner is in his opinion, serious, the petitioner

cannot rely on standing order 15(b). Even otherwise standing order 15(b) uses the expression ""generally"" which means that in extraordinary

situations, the punishment of dismissal can be resorted to even for the case of misconduct set out in standing order 15(b).

Coming to the next question whether the order of dismissal passed against the petitioner by the Deputy Chairman is vitiated for the reason that

he has not taken into account his past record, the learned counsel for the petitioner refer to the following decisions as supporting his stand. See

Borosil Glass Works Limited Vs. M.G. Chitale and Richard M. D''souza, and Madurai-Devakottai Transport (Private) Ltd., v. Labour Court,

Madurai 1976 II LLJ 448. In M. G. Chitale case (supra), and order of dismissal made pursuant to a domestic enquiry was attacked on the ground

that while imposing the punishment, the management did not consider the previous record, gravity of misconduct, extenuating or aggravating

circumstances as required by standing order 25(6) of the model standing order. In that case, standing order 25(6) was taken as imperative and as

the petitioner was awarded the extreme penalty of dismissal without reference to his past record as required under the standing order, the order of

dismissal was set aside. In The Management of Mahalakshmi Textile Mills Vs. The Presiding Officer, Labour Court and Others, , a Division Bench

of this High Court has observed as follows :

Where the standing order framed in respect of an industry specifically provides that, in awarding punishments for misconduct of a workman the

management shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or

aggravating circumstances that may exist, having regard to the mandatory nature of the standing order, there is no option left to the management to

neglect these relevant factors. When these factors have not been taken into consideration by the management while passing an order of dismissal of

a workman, such order cannot be sustained.

The learned counsel for the Dock Labour Board relied on the following observations of Ramakrishnan, J., in Management of Solar Works,

Madras Vs. Workmen Employed in the Solar Works, Madras and Another, . In that case, it was held that :

Where the misconduct per set was sufficient to justify the dismissal because of its serious nature, there is no scope at all for entertaining any

apprehension that the management failed to give due weight to the provision of standing order 16(3) regarding past good conduct of the workers in

fixing the quantum of punishment or that if it had done so, a different result would have followed.

When the attention of the learned Judge was invited to the decision of the Bench in Mahalakshmi Textiles case (supra), the learned Judge

distinguished that case on the ground that where the misconduct of the worker was trifle and trivial, namely, overstayal of leave, and, therefore,

when the punishment of dismissal for such a trivial act, which was quite disproportionate, was imposed, the Court felt that the worker''s past

record should have been taken into account while imposing the punishment. On the facts of this case, I am in entire agreement with the view

expressed by Ramakrishnan, J., in the above case. Where the charge held proved against the worker is found to be trivial, but the punishment

meted out to the worker on the basis of that charge is severe and disproportionate, the failure on the part of the management to take into account

the worker''s past record and other extenuating circumstances may be very material, and if his past record had been taken into account, there was

every likelihood of the punishment having been less severe. But where a worker is guilty of a serious offence inviting dismissal, very little will turn

upon the previous record of the worker. The fact that a person had a previous good record can hardly weigh with the management when it finds

that the worker by inciting an illegal strike was paralyzing the working of the industry, and if in such an instance, the management proceeded to

dismiss the person, I am unable to see how in this case, the non-consideration of the previous record could vitiate the final order which has been

passed under regulation 45 referred to above. Standing order 16(4) merely says that the management shall take into account the gravity of the

misconduct, the previous record, if any, of the workman, and any other extenuating or aggravating circumstances. Regulation 45, however, states

that if the gravity of the misconduct standing by itself, would justify the dismissal, and no amount of previous good conduct might affect the gravity

of the misconduct. Thus, the second contention also fails.

Coming to the question as to whether the decision of this Court in the writ appeal would constitute res judicata, the learned counsel for the

petitioner would state that the question that the punishment of dismissal is severe having regard to the charges levelled against the petitioner was not

raised in the writ proceedings, and the question was raised only before the Industrial Tribunal, and for that question the decision in this writ petition

cannot constitute res judicata. This contention of the learned counsel obviously overlooks the fact that what operates as res judicata. This

contention of the learned counsel obviously overlooks the fact what operates as res judicata is the decision and not the observation or reasons

given by the Court. Though the petitioner did not raise the question which he has urged before the Tribunal, before this Court in the earlier

proceedings, still the decision will operate as res judicata. If any authority is needed for the position of law, the decision of the Supreme Court in

Union of India (UOI) Vs. Nanak Singh, , can be refereed to. In that case originally a writ petition was filed to quash an order of dismissal of a civil

servant on two alternative grounds and the same was dismissed. Subsequently a suit was filed for a declaration that the order of dismissal was

illegal, null and void."" One of the grounds urged in the suit was not pleaded in the writ petition and there was no decision of the Court on that point

in the writ petition. A question arose as to whether the decision in the writ petition will constitute res judicata as regards the new ground that was

urged in the suit. The Supreme Court held that though the provisions of S. 11 of the Code of Civil Procedure, do not apply to writ proceedings,

the principle or res judicata contained therein will apply to writ proceedings and, therefore, any decision rendered in writ proceedings will bar any

subsequent proceedings for the same relief even though the relief claimed is based on a different ground. In view of the said decision of the

Supreme Court, the decision of this Court in Writ Appeal No. 203 of 1974, will constitute res judicata, for, the petitioner, questioned the validity

of the order of dismissal on various grounds and ultimately failed. It is no doubt true that the point of severity of the punishment was not specifically

raised in the earlier proceedings. But what operates as res judicata is the decision and not the reasons on which the decisions is based.

In this view of the matter, all the grounds urged in the writ petition fail. The Writ petition is, therefore, dismissed. However, there will be no

order as to costs.